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ABSTRACT
This article demonstrates that the European Union (EU) can curtail the autonomy of the Fédération Internationale de Football Association (FIFA) and the Union of European Football Associations (UEFA) by building upon insights from the principal-agent model. It explores and explains the EU's control over these organizations by mapping the actors and instruments that define EU control of FIFA and UEFA and discussing their activation and mitigation. In this light, it introduces a new perspective (exogenous control) and instrument (steering). Whether or not the EU deploys the control instruments at its disposal is defined by a constant interplay between FIFA and UEFA, their political and football principals and their EU supervisors. Activating and mitigating control within this triangular set-up will dictate whether or not FIFA and UEFA can expect their autonomy to be curtailed if and when they break from good governance practices.
ACKNOWLEDGEMENTS
We would like to thank Andreas Boogaerts, Alexander Brand, Colleen Carroll, Andreas Dür, Arne Niemann and Yf Reykers as well as the three anonymous referees and the participants to the 2014 Sport&EU and UACES conferences for their constructive input.
Notes
1 The Bosman ruling by the Court of Justice of the European Union's (CJEU) (Case C-415/93 [1995] ECR I-4921) is cited most often in this regard. In brief, the CJEU ruled that both the system regulating the international transfer of football players (as defined by FIFA and UEFA) and a quota system restricting the number of foreign players on a team violated the free movement of workers.
2 The relation between FIFA and UEFA falls outside the scope of this contribution.
3 The use of the PA model is justified by the fact that FIFA and UEFA fulfil a range of (specialised, co-ordinating, collaborating, agenda-setting and arbitrating) tasks on behalf of this group (Hawkins et al. Citation2006).
4 The literature acknowledges that a contract can be implicit in the sense that it is ‘never formally acknowledged’ (Hawkins et al. Citation2006: 7).
5 Nielson and Tierney define a proximate principal as a ‘principal with the formal authority to hire, fire, or otherwise alter the agent's employment contract’ (Nielson and Tierney Citation2003: 249). FIFA and UEFA's statutes constitute the contract in their relationship with national federations.
6 This is particularly the case for FIFA. This difference between FIFA and UEFA can be explained by a combination of a higher degree of heterogeneity among national football federations and a more limited amount of statutory options for control.
7 Incompleteness refers to the presence of ‘gaps' in the contract, which means that there are ‘states of nature for which no action or transfer is specified’ (Spier Citation1992: 433). FIFA and UEFA's statutes can be conceived as incomplete contracts.
8 These plans were shelved when UEFA agreed to reform the Champions League at the benefit of European élite clubs (Holt Citation2006: 35).
9 See the competition law cases resulting in better access for fans to football cited below.
10 Including important parts of employment rules for football players. Note that in Walrave (Case 36/74 [1974] ECR 1405), the CJEU implicitly held that states delegate legislative powers to sport governing bodies (Interview, member of the Court of Justice of the European Union, 10 September 2013).
11 Because EU member states did not create the EU institutions to control FIFA and UEFA, the CJEU and the Commission cannot be seen as an ‘institutional check’ (Kiewit and McCubbins Citation1991: 33–4).
12 Note that official EU documents containing legal provisions, decisions/rulings and policies serve as formal contracts, even if they are not ‘formally acknowledged’ by the agents (Hawkins et al. Citation2006: 7).
13 An exception is Meca-Medina (Case C-519/04 [2006] ECR II-3291; see Weatherill [Citation2006]).
14 This section only lists cases that are directly related to FIFA and/or UEFA. Note, however, that rulings and decisions that do not involve FIFA and/or UEFA can have an impact on these organization nonetheless. Because of the need for legal certainty and equality, the CJEU has been very reluctant to depart from its earlier case law and the Commission is committed to ensuring conformity in its regulatory practice.
15 The Commission's regulatory practice only constitutes a sanction when a decision is taken to abolish a certain sports rule.
16 Case 13/76 [1976] ECR 1333.
17 Case C-325/08 [2010] ECR I-02177.
18 COMP 33.384 and 33.378, 27 October 1992.
19 COMP 36.888, 20 July 1999.
20 COMP 37.398, 23 July 2003.
21 COMP 39.177, withdrawn.
22 COMP 37124, 16 April 2002. The CJEU upheld this decision in Case C-171/05 P Piau v Commission [2006] ECR I-37.
23 Rhodes and Visser (2011: 126) hint at steering, distinguishing ‘goal setting’ and ‘incentive creation’ as elements that are distinct from conventional control in PA relationships.
24 Football principals can steer FIFA and UEFA under the same shadow of hierarchy. Both clubs and players have obtained a number of concessions from FIFA and UEFA by threatening legal action on the basis of EU law (García Citation2008: 228; Irving Citation2002: 720; Meier and García Citation2013: 435).
25 Article 165 of the Treaty on the Functioning of the European Union gives the EU a formal role in the field of sport (García and Weatherill Citation2012). Policy-making in sport can, however, be initiated on the basis of other relevant articles. Hierarchical measures in relation to FIFA and UEFA thus remain a (hypothetical) option (see below).
26 Other (good governance related) examples of steering include the promotion of standards of good governance (European Commission Citation2011: 13) and best practices through Expert Groups (Council of the European Union Citation2011, 2014), as well as the funding of projects and studies that spread information and provide an impetus for persuasion.
27 See, most recently, the arrangement for co-operation between the Commission and UEFA (European Commission Citation2014).
28 Interview, European Commission administrator, 2 July 2013; Interview, member of the European Parliament, 10 July 2013; Interview, FIFA official, 1 October 2013; Interview UEFA official, 13 August 2012
29 As noted, (quasi-)judicial decisions do not have to be directly related to FIFA and UEFA in order to have an impact on them. For the sake of parsimony, this section only maps the scenarios that lead to direct EU control of FIFA and UEFA.
30 EU member states constitute 28 and, thus, only a fraction of FIFA and UEFA's political principals. Both FIFA (209 member federations) and UEFA (54 member federations) have a member base that goes well beyond the EU territory. The EU can, however, control FIFA and UEFA on behalf of all their political principals and not only the EU member states.
31 The Commission thus operates in a world of ‘more immediate and credible threat of sanctions' imposed by the Parliament (Tallberg Citation2003: 137).
32 Interview, member of the European Parliament, 10 July 2013.
33 Our interviews suggest that the influence of FIFA and UEFA and member states on the CJEU's rulings in sport is negligible.
34 Case C-243/06 [2006], withdrawn.
35 Case C-264/98 [2001], withdrawn.
36 The Dispute Resolution Chamber provides arbitration and dispute resolution on the basis of equal representation of players and clubs and an independent chairman.
37 Interview, member of the European Parliament, 10 July 2013.
38 Interview, former head of government, 11 July 2013.
39 Interview, member of the European Parliament, 10 July 2013.
40 In broad terms, these regulations introduce the break-even rule, which prevents professional football clubs from spending more than they earn (creating a more level playing field), and which constitutes a restrictive practice under EU competition law.
41 The proliferation of jurisprudence in football (and sport more generally) would empower the Commission since the latter has more leeway in relation to its member state principals when it draws on the support from the ‘less constrained’ CJEU (Tallberg Citation2003: 137).
Additional information
Arnout Geeraert is post-doctoral fellow at Leuven International and European Studies (LINES) at Leuven University, Belgium.
Edith Drieskens is assistant professor of international relations at Leuven International and European Studies (LINES) at Leuven University, Belgium.